Court of Appeal for Ontario

Citation: Persaud v. Garcia-Persaud, 2009 ONCA 782

Date: 2009-11-06

Docket: C49694

Before: Laskin, Gillese and Juriansz JJ.A.

Between:

Navindra Balram Persaud Applicant (Respondent)

and

Angela Sarah Garcia-Persaud Respondent (Appellant)

Counsel: John Opolko, for the appellant C.R. Buck, for the respondent

Heard and released orally: November 2, 2009

On appeal from the order of Justice Robert M. Thompson of the Superior Court of Justice dated October 23, 2008, and the costs order dated February 10, 2009.

ENDORSEMENT

[1] In the order under appeal, the motion judge varied the order governing custody and access of the child, Sabrina Shayana Jaya Persaud, born February 25, 2006, so that the child’s primary residence was with her father, rather than her mother. The reasons given for this significant change to the original order are sparse, but appear to be twofold. The first reason is that the motion judge viewed the mother as having baseless concerns about her personal safety vis a vis the father. The second was the mother’s wish to have no communication with the father.

[2] For the reasons that follow, we would allow the appeal.

[3] To begin with, the motion judge was without jurisdiction to make the order in question. As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 2008 ONCA 485, 52 R.F.L. (6th) 239 (Ont. C.A.). The matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation. In the present case, no such finding was made. Thus, as has been stated, the motion judge was without jurisdiction to vary the original order.

[4] A material change in circumstances is one which: (1) amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order: see Gordon v. Goertz, 1996 SCC 27, [1996] 2 S.C.R. 27, at para. 13. None of these factors are addressed in the brief reasons of the motion judge nor can they be found on a broader reading of the record as a whole, including the exchanges that the motion judge had with counsel. Indeed, it is highly questionable whether the third factor could have been made out, given the motion judge’s numerous statements to the effect that the issues and differences between the parties were but a rehash of that which he heard at the time he made the initial custody and access order.

[5] Moreover, on this record, it is not clear how these factors could have been determined, given the significant conflict in the affidavit evidence of the parties. In such circumstances, a variation motion cannot be properly determined on affidavit material. As this court has stated, resolution of conflicting evidence on critical matters requires a trial of the issues, in which viva voce evidence is called. See this court’s decision in Schnarr v. Schnarr (2006), 2006 ONCA 190, 22 R.F.L. (6th) 52.

[6] Importantly, we note also the extremely limited and insufficient consideration given to the matter of the child’s best interests when deciding if, and how, access should be varied.

[7] Finally and in any event, the motion judge appears to have fundamentally misunderstood the mother’s evidence. She did not allege physical violence on the part of the father, nor did she assert a concern for her personal safety. Her allegations are based on the father’s allegedly controlling behaviours, including deluging her with emails to the point of harassment.

DISPOSITION

[8] Accordingly, we allow the appeal, set aside the orders below, including the order as to costs, and dismiss the motion to vary. The result is that the custody and access order dated December 7, 2007 is restored. However, given the young age of this child and as she has now lived with her father for the past year, we are of the view that it is not in her best interest to abruptly change - once again - her living arrangements. Thus, we order that the December 2007 custody and access order be restored following a six-week transition period. Beginning this Friday, November 6, 2009, at noon, the child shall reside with the mother for one week. That is to be followed by the child residing with her father for the following week. This arrangement with alternating primary residences shall continue for six weeks at which point the December 2007 order shall come into effect, including whatever provisions are made therein for access over the holiday period. The terms of this order in respect of the six-week transition period may be varied by agreement of the parties.

[9] This order is made without prejudice to either party to bring a fresh motion to vary, which we direct would be heard by a judge other than the motion judge in this case. As the December 2007 order requires that further proceedings to be brought before the motion judge, we order that the December 2007 order be varied by the deletion of para. 31.

[10] There shall be no costs of the motion below. Costs of the appeal are ordered in favour of the appellant, fixed in the amount of $7316.71, all inclusive.

“John Laskin J.A.”

“E.E. Gillese J.A.”

“R.G. Juriansz J.A.”